Consultation Paper on the General Law of the Landlord and Tenant

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Kenny HomesClause 5(a)“This Agreement and the benefits hereby conferred on thehirer is [sic] a personal privilege of the hirer”Clause 6“It is hereby agreed and declared and it is the intention ofthe parties hereto and each of them that nothing in thisagreement shall be, or ought to be construed as granting anyinterest whatsoever in the said site to the Hirer, or givingrise to the relationship of landlord and tenant between theCompany and the Hirer, or as conferring on the Hirer anyexclusive right to possession of the site or any part thereof,or any right of possession at all therein, save to the extentnecessary to give effect to the hiring and to enable theprovisions of this agreement to be fulfilled.”SmithClause 10“Nothing in this licence shall be construed as giving thelicensee any tenancy in or right to possession of or any rightor easement over or with respect to any part of the propertyof the Board or the property of the Company. In particularand without prejudice to the generality of the foregoing it ishereby declared that it is not the intention of either theBoard or the Company on the one part or the licensee on theother part in relation to the premises or the said Railwayarch or any part thereof to create between them therelationship of landlord and tenant or to confer such rightsupon the licensee as would amount in law to a tenancy(including a tenancy at will) or to create any estate orproprietary interest for the licensee therein.”Clause 11“The arrangement hereby evidenced is made by the Boardand the Company for their respective temporaryconvenience which is that the Board or the Company whileretaining the ownership possession occupation control and27
management of the said Railway arch (which is an integralpart of the station and the railway undertaking andnecessarily and essentially required in connection with theoperation thereof) should use the airspace of the saidRailway arch to good purpose and not allow same to remainidle without profit or return.”An illustration of the uncertainty which has now been introduced intothe law is the contrasting approach of the courts in the two cases.1.29 In the Kenny Homes case Costello P took the view that theprovisions of the agreements “could not have been in clearer terms”as indicating an intention on the part of the parties not to create atenancy and, notwithstanding the long period of occupation of thepremises, ruled that the occupiers did not have one. His decision wasupheld by the Supreme Court, in which Lynch J, giving the judgmentof the Court, described the agreements as “crystal” clear. On theother hand, in the Smith case Peart J 124 ruled that a tenancy had beencreated, notwithstanding his concluding remarks after a review of theevidence:-“I have set out the evidence in some detail from my notesfor the purpose of demonstrating that there is no disputewhatsoever on the facts that the agreement entered intobetween the parties was known to be, and accepted by theapplicant to be, a licence agreement and that it was notintended that any tenancy rights should arise. It is clearfrom the evidence and from the documents produced inevidence that this is the case. In fact there is no dispute onthe facts. What has to be decided is, in the main, a legalissue.”Peart J also recorded that the occupier of the shop was an experiencedbusiness man who had engaged his own solicitors firm to negotiatethe terms of the agreement on his behalf. He made it clear in hisevidence that he had always understood that all he was getting was alicence. Indeed, when later during the course of his occupation he124A curious feature of Peart J’s judgment is that, although reference is madeto earlier Irish cases and English cases like Street v Mountford, no mentionis made of the Kenny Homes case (notwithstanding its status as a decisionof the Supreme Court).28
Page 6 and 7: Landlord and Tenant Law Working Gro
Page 8 and 9: E Landlord’s Identity and Agent .
Page 10: INTRODUCTION1. This is the second <
Page 14 and 15: CHAPTER 1THE RELATIONSHIP OF LANDLO
Page 21 and 22: after its enactment there were nume
Page 23 and 24: Commission’s preliminary conclusi
Page 25 and 26: 1.15 It might be thought that the I
Page 27 and 28: preliminary conclusion that any re-
Page 29 and 30: like lodgers, 83 hotel guests, 84 s
Page 31 and 32: landlord and tenant.” 96 This see
Page 33 and 34: the nature of a tenant’s interest
Page 35: parties an intention which they nev
Page 39 and 40: the courts’ desire in the past to
Page 42 and 43: CHAPTER 2FORMALITIES2.01 This chapt
Page 44 and 45: Commission has previously drawn att
Page 46 and 47: paragraph, such an arrangement woul
Page 48 and 49: Deasy’s Act should be dropped fro
Page 50 and 51: the judges of the old Exchequer Cha
Page 52 and 53: within the purview of the Landlord
Page 54 and 55: seems to be inconsistent with the c
Page 56 and 57: E Surrenders2.21 Section 7 of Deasy
Page 58 and 59: premises, the alternative of a new
Page 60 and 61: espect to the part not surrendered.
Page 62 and 63: CHAPTER 3SUCCESSORS IN TITLE3.01 Th
Page 64 and 65: section 10 of the Conveyancing Act
Page 66 and 67: prescribe that a particular tenant
Page 68: not clear how far statute law has c
Page 71 and 72: was not resolved until the enactmen
Page 73 and 74: the doctrine of estoppel. 57 On the
Page 75 and 76: eferred to as a severance of the in
Page 77 and 78: need to have statutory provisions t
Page 79 and 80: the premises occupied by the sub-te
Page 82 and 83: CHAPTER 4FIXTURES4.01 The law of
Page 84 and 85: tenant. Often an item installed in
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A Common Law4.09 Originally at comm
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parties’ agreement. Furthermore,
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fixtures. Given that this is subjec
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(viii) it should also be made clear
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(2) consumer protection; (3) defaul
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subject was discussed in the <stron
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already covered by modern legislati
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CHAPTER 6LANDLORD’S OBLIGATIONS6.
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for sale. 14 This matter is again o
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may not be a point of much substanc
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how far the Irish courts will follo
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6.13 To some extent the very limite
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of the Residential Tenancies Bill 2
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6.19 It was mentioned earlier that
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E Landlord’s Identity and Agent6.
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CHAPTER 7TENANT’S OBLIGATIONS7.01
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CHAPTER 8RENT AND OTHER PAYMENTS8.0
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8.04 Section 42 of Deasy’s Act do
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until the last gale day of the curr
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one. 33 Disputes as to the new rent
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overholding. 47 The Commission prov
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on the landlord’s breach of repai
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Notwithstanding use of the title
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CHAPTER 9SERVICE CHARGES9.01 It has
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in service charges, so as to ensure
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namely permissive, voluntary, ameli
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section 42 implied obligation shoul
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sensible provisions, which are usua
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against “unreasonable withholding
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obligations by the landlord, 50 is
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(e)(f)(g)Should the remedy apply to
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provisionally recommends that the p
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whether, in the absence of an expre
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(e)(f)Tenant to be liable for incre
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12.03 Merger is a doctrine of gener
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eiterates the recommendation of leg
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should be any distinction as to the
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12.11 There is one further, somewha
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CHAPTER 13NOTICE13.01 Service of a
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comprehensive and exhaustive, in th
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D Sub-Tenants13.08 It may be conven
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13.11 As indicated in the recommend
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very small rent. The Residential Te
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obligation by any tenant unless exc
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y one joint tenant is sufficient to
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“reasonable time” may vary from
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ent and other payments may be accum
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obtainable from the court in which
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mortgage it should have power to de
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a tenancy of a dwelling could not b
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seems to have fallen into disuse. 1
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is sufficient. 32 It is questionabl
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CHAPTER 16LIMITATION OF ACTIONS16.0
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1707 Administration of Justice Act
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the occupier of the land in questio
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set of statutory provisions governi
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comprehensively with part assignmen
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(ii) take the form of a scheme of
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y the landlord thereby making it cl
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Chapter 11 Insurance18.73 The Commi
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18.82 The Commission recommends tha
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the original sub-tenancy or mortgag
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APPENDIXLIST OF LAW REFORM COMMISSI
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Working Paper No 1
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Report on the Liability in Tort ofM
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Eleventh (Annual) Report (1989) (Pl
Page 226 and 227:
Report on Occupiers’ Liability (L
Page 228 and 229:
Report on Privacy: Surveillance and
Page 230 and 231:
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